thelibrarina asked: Hi! I'm a teen librarian holding a "blackout poetry" program this month, where you make a poem out of words on a book's page and cross out the others. I'm curious as to how copyright applies to the teens' finished works. Is it transformative? Is it an original work using a limited vocabulary?
There’s no case law on this specific topic, so we have to reach a conclusion by analogy, and look at cases that allow - or bar - similar things. And we’re assuming you’re in the US - if you’re not, then the Fair Use and First Sale doctrines in your country may be different.
First, there’s an interesting issue in what you’re doing - if you’re using pages from an actual book, the First Sale Doctrine allows you to do whatever you want to a copy of a book that you own (or are allowed to write on), as long as it isn’t a work of fine art or photography that meets the requirements of the Visual Artists Rights Act.
Then, combine that doctrine with the fact that it is not possible in the US to copyright words or short phrases, or ideas. It’s actually barred by the Copyright Act, which is why so many works have the same title (although the title of a series of books can be trademarked, which is a different kind of IP protection).
And finally, run a Fair Use analysis on what’s left of the original work. A Fair Use analysis looks at these factors:
(1) The purpose and character of the use, including whether you’ve made a new transformative work, and whether your use is commercial.
(2) The nature of the original work, such as whether it is more factual than fictional.
(3) How much of the original work was used.
(4) Whether the new use affects the potential market for the original work.
Commercial use doesn’t mean something isn’t fair use. But if you’re doing this at a library, then it’s likely noncommercial anyway. You’re not using much of the original work, and there’s no negative impact on the potential market for the original work, so it likely comes under the ambit of Fair Use.
If most of the original words are not visible, what you’re doing is transformative. And those doing the blackout poetry probably would hold copyright in the final work, both as a text work, and a work of visual art.
ETA: I realized I forgot to speak about what happens if the book you’re marking up is public domain - if that’s the case, then nobody owns the copyright in the printed words and you can do whatever you want with it. And since I’m adding info, I’m going to share Rivkat’s info about the 7th and 9th Circuits in the US:
Depends on where you are! If in the 7th Circuit, the properly decided case ofLee v. ART Tiles makes clear that if you are using a lawfully made copy and just writing/using marker to black words out on it you don’t need to do a fair use analysis; you aren’t doing anything that copyright prohibits in the first place! Unfortunately, though there is general consensus that Lee is completely right, there’s a case in the 9th Circuit to the contrary, Mirage. So if you’re in the 9th Circuit, you may indeed have to do a fair use analysis, or rely on the fact that Mirage is completely wrong and that the 9th Circuit probably wouldn’t hold the same way today.
(If you’re making copies of pages and then blacking out words on those copies, then you do have to do a fair use analysis.)